HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Stather

Applicant

-and-

Toronto District School Board,

Emanuel Moura, Patricia Hodgins, Shellie Preston, Sherrie Bowman, Diana Callegari, Tara Jane Blackwell

and Elena Ioannou

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: March 8, 2012

Citation: 2012 HRTO 497

Indexed as: Stather v. Toronto District School Board

WRITTEN SUBMISSIONS

Brian Stather, Applicant ) Osborn Godfrey Barnwell, Counsel

Toronto District School Board, )

Emanuel Moura ,and ) Grant Bowers, Counsel

Patricia Hodgins, Respondents )

INTRODUCTION

1This is an Application filed September 2, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The respondents filed Responses in December 2011.

2This interim decision deals with a Request to Defer by the Respondents Toronto District School Board, Emanuel Moura and Patricia Hodgins, by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process initiated by the applicant through the applicant’s bargaining agent on June 16, 2011.

3The Registrar delivered the Notice of Tribunal Intent to Defer to the applicant on February 6, 2011. In that correspondence the applicant was advised that written submissions with regard to the Request to Defer must be filed with the Tribunal by February 21, 2011.

4No submissions regarding the Request to Defer were received from the applicant.

ANALYSIS

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779 and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.

7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. See, Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights as if they were part of the collective agreement. See, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8The Tribunal finds it appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of that grievance, the alleged harassment and differential treatment of the applicant in the workplace, is also the key issue covered by this Application. There may be issues raised by the Application that go beyond those that might be litigated before an arbitrator. However, given the considerable factual overlap between the two proceedings and the potential for an arbitration to determine some of the issues in this Application the rational and orderly litigation of the various issues between this applicant and his employer favour deferral. See, with similar circumstances, O’Brien v. Burlington (City), 2009 HRTO 1818, Chau v. Workright Inc., 2011 HRTO 598 and Colella v. Toronto District Catholic School Board, 2011 HRTO 1289.

ORDER

9In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

10I am not seized of this matter.